If you’re like many in the queer community who ran out and got married without considering the legal and financial consequences, you might consider adopting a marital agreement to protect yourself, your spouse and your assets. If you’re only now getting married, consider getting a prenuptial or premarital agreement for the same protections.

What Same-Sex Couples Should Know About Marriage Agreements Before Their Same-Sex Marriage - Photo by Shutterstock

Wray says that premarital and marital agreements are the same type of legal document, except that the former is drafted before the marriage begins and the latter is drafted after the marriage begins. Both legal documents dictate how property and possible alimony will be treated when a marriage ends in divorce.

Before you say, “I do”

Before you marry your partner, formalize a premarital agreement. Premarital agreements provide controls in case your marriage ends in divorce. Have conversations to make sure you’re on the same page about how the marriage will work, about your finances and how you plan to raise children who will be a part of the family or a result of your marriage.

A premarital agreement goes into effect after the agreement is signed and the parties marry. Wray cautions, “The value of a premarital agreement over a marital agreement is that between the date of marriage and the creation of the marital agreement, spouses may inadvertently enter into nonverbal agreements that may cause complications when drafting a marital agreement.”

Marital agreements typically include how to divide physical and financial assets, including 401(k)s, IRAs, business assets, and support provisions, including alimony, but not including child support. It may define roles for disability and death, such as durable and springing powers of attorney, and even agreements on how to divide responsibilities for future attorney’s fees.

Wray makes clear that marital agreements cannot include provisions related to children, including child support. This is because the courts hold the authority and jurisdiction to determine a child’s best interest. The only exception to this exclusion is family wealth. Wealth acquired before the marriage can be designated exclusively for a child.

Property acquired during a marriage is considered marital property unless otherwise stated in a marital agreement or “the property was received as the result of an inheritance or was excluded as marital property as a form of a valid agreement” Wray says.

Debt brought into a marriage, however, is considered separate from the marriage unless it’s comingled with marital debt, such as through debt consolidation or rolling credit card debt into a home equity loan. Likewise, if student loans were taken out by one spouse before marriage is used to pay for food or a mortgage during the marriage it will be considered marital debt unless otherwise stated in a marital agreement.

Though this may seem obvious, it catches many by surprise. When a spouse’s name is added to the deed of real estate property that property is then considered “gifted to the marriage” and is no longer owned by one spouse but by both. If the marriage ends in divorce, the gifted property and its appreciation will need to be divided equitably.

After you say, “I do”

As a premarital agreement becomes effective after both parties sign the agreement and then marry, a marital agreement becomes effective upon signing because the parties are already married. Other than that difference, premarital and marital agreements are the same.

In either case, whether drafting a premarital or marital agreement, it’s in both party’s best interests to seek independent legal counsel. This helps ensure both parties have attorneys representing their best interests.

Those in the queer community who quickly married after the Supreme Courts Obergefell v. Hodges’ decision in 2015 may want to now consider a marital agreement. This will reduce problems should their marriages end in divorce. Those who are now getting married should consider a premarital agreement for the same reason. The stigma of marital agreements isn’t what it used to be and is, in fact, a smart way to help keep your relationship amicable regardless of how it evolves.

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